Brien Roche
Brien Roche is an experienced truck accident lawyer serving all of Northern Virginia, including Fairfax, McLean, Vienna, Burke, Annandale, Falls Church, Reston, Centreville, Manassas, Alexandria, Herndon, Arlington, and Loudoun County. If you have been involved in a truck accident contact us for a free consultation about your claim.
Truck accident litigation is hard fought and complex. Our roadways are loaded with large trucks which are typically called 18-wheelers. These 18-wheelers or tractor-trailers are mammoth vehicles that occupy their entire lane. Typically, they are driven by experienced drivers, but sometimes these drivers make mistakes.
Tractor trailer crashes account for approximately 500,000 vehicles accidents in the United States each year. Drivers of these large trucks are ten times more likely to be the cause of a car crash than any other factor. Those other potential factors may be such things as weather, road conditions or vehicle performance according to the U.S. Department of Transportation.
These massive vehicles can weigh up to 40 times more than your typical car. When these trucks are fully loaded with approximately 80,000 pounds and traveling at 60 miles per hour they can demolish anything in their path.
In investigating these types of cases some helpful hints are the following:
When a truck accident occurs the insurance carrier and its lawyers are promptly on the case. It is not unusual that when a plaintiff is injured it takes several months before that plaintiff retains counsel. That lapse of time could be critical since many important records relating to a truck accident only need to be retained for six months.
The initial course of action therefore has to be to get a letter out to the trucking company requesting that they preserve all records and data relating to this collision.
The next critical step is to visit the scene with a trucking expert and/or reconstruction expert and perhaps an investigator who can attempt to locate any witnesses not identified on the police report.
Next it is critical to identify anything within the driver’s cab that may have either been a source of communication to or from the driver or a potential distraction to the driver. This can consist of cell phones, text messaging devices, freight tracking equipment and any satellite based navigation or communication system. All of those need to be identified and then data extracted from them.
Truck accident investigation has been made somewhat easier with the recent implementation of the Compliance Safety Accountability Program by the Federal Motor Carrier Safety Administration of the federal government. The data available from CSA has to be requested through FOIA. This new system is designed to identify potentially high risk trucking companies. The system uses a number of different criteria to provide a rating to different companies. Those criteria are:
In perusing this data it is important to make sure that the data you have relates to the company you are investigating. When a company changes hands it receives a new Department of Transportation number.
In addition, the federal government has implemented a new pre-employment screening program that is available only to carriers relating to potential hires. Determining whether the defendant uses that system, if applicable, may certainly be helpful.
Finally, certain carriers that have been non-compliant with log requirements are now required to have an electronic on-board recorder on their trucks. These recorders are less susceptible to manipulation. In reviewing any data from these recorders it is important to be conscious of any audits of this equipment that may have been conducted so as to identify any changes to the log.
The vast majority of trucking companies are entities that carry substantial insurance coverage. To some extent this is mandated by federal law. The federal agency that oversees interstate trucking is the Federal Motor Carrier Safety Administration. Federal law requires the issuance of a MCS-90 Form which is an endorsement to interstate motor carrier’s insurance policies that provides essentially unconditional coverage to the public. This endorsement is to be attached to the underlying policy that the trucking company maintains. The language within this endorsement requires that the insurance company agrees to pay any final judgment recovered resulting from negligence regardless of whether or not each motor vehicle is specifically described in the policy. Under the terms of this endorsement the failure of the trucking company to give proper notice of the claim and their failure to cooperate may not be a basis for a denial of coverage. The purpose of this endorsement is to provide coverage where the underlying policy does not do so. It only applies to interstate motor carriers. Those terms are very specific and they are defined in the regulations. The minimum coverage is $750,000. Keep in mind that if the tractor and trailer are separately owned then separate insurance policies may apply.
An Illinois state trooper on March 28, 2013 was hit by a tractor trailer. He was parked on the left shoulder of Interstate 294. The driver of a United Van Lines truck pulling a trailer loaded with household goods came at him in the left lane. That driver had already worked a 12 hour shift loading that huge truck. He then drove for another 4 hours. He fell asleep at the wheel. His truck went off the road crashing into the trooper’s vehicle. The trooper was engulfed in flames. He died of those burn injuries. The 26 year-old truck driver was criminally charged. The moving company was fined for breaking federal law prohibiting a driver to be on duty for more than 14 hours without getting rest. The suit that was eventually filed against United Van Lines settled for over $10 Million.
There are an estimated 2 million tractor trailers on the road nationwide. The primary causes of tractor trailer crashes are:
One of the main difficulties in driving a large truck is the fact that these trucks tend to have large blind spots. Drivers should avoid these blind spots at the rear of the truck and the side of the truck. Likewise the connecting point between the truck and its trailer may well be a blind spot. If you can’t see the driver in the driver’s side mirrors then that means the driver can’t see you and you may want to get out of that particular location on the roadway.
Some tips in terms of avoiding tractor trailer crashes are:
Truck accident standards are in large measure derived from the Federal Motor Carrier Safety Regulations. However those regulations are not the only source of standards. Truck accident standards can also be found in industry standards and also in the Commercial Drivers’ License (CDL) manual.
Some of the basic industry standards are that truck drivers must approach every intersection assuming that cross traffic may not obey the traffic signals; drivers must not start a left turn until there is enough time for the rear of their vehicle to clear the intersection without forcing opposing drivers to slow down; drivers have a duty of extreme caution when it is raining and must reduce their speed by one-third (1/3). Those basic rules can be a tremendous help in any truck accident case. The Federal Motor Carrier Safety Regulations carry the force of law. Industry standards do not.
The Federal Motor Carrier Safety Regulations require every state to provide a CDL manual that contains the substance of the knowledge and skills that drivers must have. It provides the specificity that the regulations may lack. One of the things covered in the manual is the fact that drivers need to look 12 to 15 seconds ahead in terms of their general observation. In many circumstances the CDL manual not only for the state of the accident can be used but also the CDL manual for the state where the driver is licensed can be used. Although typically they would be the same, there may be some slight differences. This CDL manual becomes an excellent source of refuting the defendant’s trucking experts who state that the standard of care is determined based on the driver’s best judgment. Another source of standards is the material that the industry uses to teach new drivers and to refresh experienced drivers in their various driving schools. Many trucking companies also maintain what are called preventability manuals which they use after collisions to assess whether or not their drivers acted reasonably. There are three commonly used preventability manuals that are published by the American Trucking Association, the National Safety Council and the Federal Highway Authority. All of those can be good sources of truck accident standards.
The truck accident-sleep apnea connection should be looked at in most truck accident cases. Sleep apnea is a condition that affects many people, in particular men over 40. It results from the muscles in the back of the throat relaxing to the point where the person cannot experience normal breathing. It typically results in the person waking up at night. This waking up may occur many times during the course of the night resulting in inadequate sleep.
Some of the common characteristics that seem to apply to people that have sleep apnea are the existence of a deviated septum, allergies, sinus problems, a larger than average neck, obesity. Men over 40 in particular are affected by this condition. Many of these men happen to be truck drivers.
As such, it may be appropriate to delve into the issue of sleep apnea of the truck driver if in fact there is any issue of sleep being a causative factor.
Sleep apnea can be dealt with surgically for what are called obstructive disorders. There are also non-surgical options such as the use of CPAP which stands for continuous positive airway pressure. This is simply a fancy term for having an oxygen mask over your nose at night so as to allow the continuous flow of oxygen so that there is no interruption of sleep.
CPAP is a somewhat cumbersome means of treatment. There are less awkward means of treatment that will help to open up the airway and to facilitate breathing while sleeping.
Any truck accident occurring as a result of the truck driver falling asleep at the wheel must involve a thorough investigation of the driver’s medical history. Most drivers are paid by the mile and, as such, the more time that they spend behind the wheel operating their rig the more money they make. Any downtime consisting of refueling time and loading and unloading time are not counted within the driver’s paycheck and therefore may be subject to misstatements as to their frequency or length.
Where it is suspected that a truck driver may have fallen asleep at the wheel there are several things that need to be looked at:
Truck accidents that involves potential usage of drugs or alcohol by the truck driver need to be thoroughly investigated by obtaining any and all U. S. Department of Transportation mandated or allowed testing that was done of the driver involved in the truck accident. This should include testing of alcohol and/or drug usage. Many trucking companies use third-party administrators to conduct these testing programs. If that is the case, then all of the records from that third-party administrator need to be obtained including information as to how drivers were given notification of impending tests. That is, if the driver was given adequate forewarning of a scheduled drug or alcohol test then obviously that would allow sufficient time to change behavior. Likewise, the criteria employed for labeling a test as negative or positive need to be closely scrutinized. Some medical review officers may decide on their own that the presence of prescription medication in the test results does not need to be reported as being a positive test.
The trucking company is entitled to know all medications and drugs, whether they be legal or illegal, that the driver is taking. Any such documentation is subject to disclosure along with what the trucking company’s response was to such information.
If there is any evidence of any medication or drug usage by the driver, then the entire prescription history of that driver should be obtained from the pharmacy of record. Any medical privilege typically would not extend to this type of information and therefore should be subject to disclosure.
One of the first things to be obtained is any and all U. S. Department of Transportation mandated or allowed testing that was done of the driver involved in the truck accident. This should include testing of alcohol and/or drug usage. Many trucking companies use third-party administrators to conduct these testing programs. If that is the case, then all of the records from that third-party administrator need to be obtained including information as to how drivers were given notification of impending tests. That is, if the driver was given adequate forewarning of a scheduled drug or alcohol test then obviously that would allow sufficient time to change behavior. Likewise, the criteria employed for labeling a test as negative or positive needs to be closely scrutinized. Some medical review officers may decide on their own that the presence of prescription medication in the test results does not need to be reported as being a positive test.
The trucking company is entitled to know all medications and drugs, whether they be legal or illegal, that the driver is taking. Any such documentation is subject to disclosure along with what the trucking company’s response was to such information.
If there is any evidence of any medication or drug usage by the driver, then the entire prescription history of that driver should be obtained from the pharmacy of record.
Monster trucks are becoming an increasing hazard on the roadway. Twin-trailer trucks are two to three times more likely to be involved in a truck accident than are standard trucks. These trucks can be more than 100 feet long. At that length, they become inherently unstable. They are increasingly subject to jackknifing and rollover. They are slower on acceleration which thereby delays traffic, in particular going uphill and when merging. They are subject to increased side to side movement in heavy wind conditions. On wet roads they effectively create a splash effect making travel in parallel lanes almost impossible.
Truck accidents due to improper maintenance can be fatal. A recently reported jury verdict in Texas involved a truck wherein the drive shaft broke off underneath the tractor-trailer and flew into an oncoming lane. The 20-pound metal shaft crashed through the window of an oncoming vehicle striking the driver and resulting in his death.
The Plaintiffs in the subsequent lawsuit presented evidence that the U-joint holding the drive shaft in place had melted because of insufficient lubrication. This permitted the drive shaft to rip out of its placement. The lawsuit claimed that the U-joint had not been lubricated for at least four to six months before the incident.
The U-joint manufacturer recommended lubrication every 5,000 miles.
In addition the Plaintiffs asserted that the president of the trucking company knew that the fleet manager lacked the necessary qualifications to deal with these maintenance issues but allowed him to remain in that position.
Also a punitive damage award was sought on the grounds that the trucking company knew or should have known that the U-joint cross-piece would fail with potentially dangerous results. During the course of discovery it was learned that a mechanic at the truck company knew about this and other U-joints in the fleet’s trucks that had failed because of inadequate lubrication.
A substantial jury verdict was returned in this Texas case.
Underride refers to a motor vehicle riding under the back of a truck. This can have disastrous consequences. The U. S. Department of Transportation has published written standards regarding proper rear-impact guards for tractor trailers. There is some ongoing controversy as to what those rear-impact guards should consist of and exactly how high off the ground they should be. Under earlier regulations the rear guards could be has high as 30 inches off the pavement. That regulation may still govern some vehicles. Safety advocates maintain that the rear guards should be no higher than 18 inches above the pavement to prevent compact cars from riding under, that the strength requirements of these guards is about half what they should be and that the existing regulations should be made retroactive to apply to all tractor trailers on the roadway.
The regulations in existence do nothing to encourage the use of rear guards that actually absorb energy through the use of hydraulics. The guards that are on most vehicles at this point are fixed objects that do not absorb impact but simply are designed to prevent the striking vehicle from riding under.
The fact that the federal government has promulgated regulations dealing with this issue may, in some instances, create a federal preemption question. In general, however, state tort claims are preempted by federal regulation if the scope of the federal statute indicates the intent to occupy that field exclusively, compliance with both federal and state requirements is rendered impossible and state law somehow contravenes the congressional purpose. In regards to underride legislation, Congress has not demonstrated any intent to occupy that field exclusively and, as such, federal preemption should not be a bar to asserting state tort claims.
Aside from rear underride there is also a significant problem with side underride on tractor trailers. The Insurance Institute for Highway Safety reports that there were 1,542 passenger vehicle occupants killed in two-vehicle crashes with tractor trailers in 2015 and that 301 of those involved side collisions.
At this point federal regulations do not mandate any side guards. The Insurance Institute does estimate that the risk of injury could be reduced dramatically by such side guards.
The National Highway Traffic Safety Administration has concluded based on its studies that trailers that are equipped with reflector tape on the side are considerably less likely to be involved in side underride incidents.
Many other countries around the world have actually implemented regulations requiring side guards. These are designed to protect not only motorcyclists but also motor vehicle occupants.
Truck accident discovery is critical because of the complexity of trucks themselves and the complexity of the relationship between the different companies and drivers that may be involved. What follows is a series of proposed Interrogatories to first the driver and then secondly to the truck owner or company that is responsible for the vehicle itself.
1. Give the dates and results of all medical examinations required by the U.S. Department of Transportation stating the date of the exam, the name of the examiner, the location of the examination and the results.
2. If you have been involved in any prior collisions or have received any prior traffic citations then give the date, circumstances, and outcome of each.
3. If you have been cited for any violations of the Federal Motor Carrier Safety Regulations either in this incident or any other then give the date, circumstances of such and the outcome of any such citation.
4. If you have ever been placed out of service for any traffic citation or FMCSR violation state the date, circumstances, and outcome of such.
5. Identify every state that has ever issued you a driver’s license, the date of such issuance, and the current status of that license.
6. Set forth in chronological form your prior employment, the name of the employer, dates of employment, and the reason for separation.
7. Describe all driver training that you have had giving the dates, the name of the company or individual that provided the training and any certificates that you have received.
8. Describe in detail the pre-employment screening process associated with the position that you occupied on the date of this incident giving the date of any such screening and the circumstances.
9. Provide in detail all training that you have received from the company that you were associated with in regards to the vehicle in question in this case.
10. As to any communications between yourself and the company with which you were associated with on the date of this incident give the date and time of those communications, the content of those communications, the names of the individuals involved in such communications and the nature of the communications, i.e. text, email, radio, or otherwise.
11. Describe in detail your relationship with any of the other named Defendants to this action as of the date of this incident.
For more information on truck accidents see the pages on Wikipedia and the other pages on this site.
© 2019 Brien Roche Law
